GTMO and war’s end in Afghanistan

Posted Wed, September 18th, 2013 7:52 pm by Lyle Denniston

A Kuwaiti national held by the U.S. military at Guantanamo Bay for more than eleven-and-a-half years, who figured in an important Supreme Court ruling nine years ago, is making a new plea for his release — just as soon as the U.S. completes its withdrawal from the war in Afghanistan. At that point, lawyers for Fawzi Khalid Abdullah Fahad al Odah argued in a new filing Wednesday in U.S. District Court in Washington, the U.S. government will no longer have a legal basis for holding him.

The habeas petition contended that the Supreme Court has allowed detention of prisoners captured in Afghanistan or Pakistan only as long as “armed hostilities” continue for U.S. forces in that region. With the Obama administration’s planned end of those operations by the end of December 2014, the document contended, al Odah must be sent home to Kuwait.

The document illustrated once more that the American lawyers who provide legal aid to the Guantanamo prisoners — often working without fees — will continue to work out new pleas to challenge the years-long confinement of their clients. The al Odah filing is the first to be based on the plea that the Afghan war will change the entire legal framework for detention of individuals suspected of terrorist roles. The government has never faced that claim before.

Although President Obama has set the end of next year as the point of final U.S. withdrawal from Afghanistan, al Odah’s lawyers contended that the district court should not wait for a definite date when hostilities actually end, because arrangements must be made in advance for his release once the justification for his imprisonment lapses.

al Odah was captured in Afghanistan by Pakistani border guards in December 2001, and was then turned over to the U.S. military. He has been held at Guantanamo Bay in Cuba since early 2002 — one of the first detainees to reach that U.S. military outpost where nearly eight hundred terrorism suspects would be confined at one time or other. There are now only 164 detainees there, and many of them have been cleared for release, yet remain confined.

The Supreme Court — in a 2004 decision in a case in which al Odah took part (Rasul v. Bush) — first ruled that Guantanamo detainees had a legal right to go to U.S. courts to challenge their confinement. After Congress overturned that statutory ruling, the Court in the 2008 decision in Boumediene v. Bushbased the right to challenge on the Constitution — thus taking it out of Congress’s hands.

al Odah’s argument that detention authority is keyed only to ongoing “armed hostilities” in Afghanistan is based on another 2004 Supreme Court decision — Hamdi v. Rumsfeld— that appeared to have put some limits on wartime detention authority. In that decision, his new petition noted, the Court had remarked that under Congress’s post-9/11 Resolution and international law, detention at Guantanamo could “last no longer than active hostilities” against the Taliban in Afghanistan.

The petition relied heavily upon repeated statements by President Obama that the U.S. has achieved major success in defeating the Taliban, as well as scattering the Al Qaeda terrorist network.

al Odah was found by a federal judge earlier to have been a “part of” Taliban or Al Qaeda fighting forces in Afghanistan, and that was the legal basis for his detention. His petition insisted that he had never used armed forces against the United States, but he did not attempt to reopen the question of whether his initial detention was justified. Once hostilities end, he contended, there is no chance he would return to a battlefield.

The entire focus of his new challenge is the claim that, once armed conflict ends for the U.S. in 2014 in Afghanistan, that puts a stop to any continued detention of individuals captured in that region. “Once the United States discontinues active combat operations in Afghanistan, any other anti-terror missions will not be active combat operations under the international law of armed conflict,” and thus those operations could not provide a legal foundation for continued detention, the petition asserted.

Under a 1949 Geneva Convention, the petition said, his release and repatriation to his Kuwait homeland must occur “without delay after the cessation of active hostilities.”

The Obama administration will have a chance to respond to al Odah’s new legal maneuver. It seems unlikely to concede that its detention authority will end with the end of the Afghan war, since anti-terror activities are continuing in many other global sectors.

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